Bench Memos

Jay Michaelson’s “Report” on Religious Freedom: Part 1

At the Daily Beast and the Jewish Daily Forward, writer Jay Michaelson has been touting a “report” he has published this week under the auspices of a Massachusetts-based outfit calling itself Political Research Associates.  The product of a little research, a fevered imagination, and extremely sloppy thinking, Michaelson’s report is titled “Redefining Religious Liberty: The Covert Campaign Against Civil Rights.”  His targets are the “right-wing” groups making what he claims are dangerous and disingenuous arguments on behalf of religious freedom.  These groups include the Becket Fund for Religious Liberty, the Ethics and Public Policy Center, and the Alliance Defending Freedom, among others.

RRL (as I’ll call Michaelson’s “report” hereafter) is characterized by factual errors, the bullying language of the smear artist, passive-aggressive advancing of and retreat from very grave accusations, and a pervasive begging of important questions.  In the end, RRL is an empty shell—the appearance of an argument without any substance.

In a series of three posts, I’ll discuss some of the problems in RRL, although it is impossible to cover all the errors and distortions in this “report.”

1.  RRL refers to the Becket Fund as “a leading ultra-conservative, Roman Catholic-affiliated ‘religious-liberty’ organization.”  There is no need for Michaelson to put scare quotes around “religious liberty” in characterizing the Becket Fund’s purpose.  That’s all the Becket Fund has ever been about since its inception.  It’s the Fund’s one and only issue.  If it is “ultra-conservative” to defend absolutely anyone and everyone’s religious liberty, then I guess Becket qualifies.  But that seems absurd.  As for being “Roman Catholic-affiliated,” that’s simply false unless it is construed as meaningless.  Some of the Becket Fund’s board members, staff, donors, supporters, and clients are Catholic.  Many are not.  The annual award of the Canterbury Medal, given by the Becket Fund, has gone to Catholics, Protestants, Jews, and Mormons.  This year it will go to Elder Dallin Oaks of the Latter-Day Saints.

Later, Michaelson says that the Becket Fund “can be viewed as a virtual arm of the Roman Catholic Church.”  The phrase “can be viewed as” and the adjective “virtual” are the only things saving this sentence from being an outright lie—but they permit Michaelson to put across an impression that is fundamentally false.

2.  Similarly, throughout RRL, Michaelson warns darkly of the Catholic “predominance” in the “covert campaign” of the report’s subtitle.  What exactly is “covert” about a campaign of lobbying, litigation, and public persuasion being waged entirely in the open, with arguments everyone can assess on their merits, is itself an interesting question—but paranoids rarely ask themselves these things.  But Michaelson’s combination of ignorance and animus toward Catholicism comes through very clearly when he remarks that

the Roman Catholic predominance in the conservative “religious liberty” movement is ironic; obviously the Catholic Church does not tolerate “religious liberty” within its own ranks.

Of course the Church does more than “tolerate” religious freedom—it has spoken authoritatively of religious freedom as a vital principle of justice.  It may be that Michaelson is entirely ignorant of the teaching of Dignitatis Humanae, the Second Vatican Council’s Declaration on Religious Liberty, which argues for religious freedom as among the first and foremost of human rights for everyone.  But perhaps he means only to make a snide allusion to the fact that the Church’s hierarchy does not put questions of doctrine and morals up to a vote of everyone baptized in the faith.  If so, then he doesn’t know a whole lot about this religion or many others.  But how this is a failure to “tolerate” religious freedom is far from clear.

3.  In describing the 1879 Supreme Court decision in Reynolds v. United States (concerning a federal anti-polygamy statute), Michaelson says parenthetically that the decision was “later overturned.”  But Reynolds has never been overturned, and was cited as good law and a relevant precedent in the 1990 Employment Division v. Smith decision.

4.  Michaelson describes Liberty University and Regent University, each founded by an evangelical minister, as “para-academic institutions.”  Each of these universities is an accredited degree-granting institution of higher education.  What is the prefix “para-” supposed to insinuate, other than that Liberty and Regent aren’t really real universities?  This is nothing but the usual left-wing prejudice against evangelical Christians, especially those in the South.

5.  In describing last year’s landmark ruling in Hosanna-Tabor v. EEOC, Michaelson notes that “though the decision was 9-0, the justices split among multiple opinions.”  Well, in addition to Chief Justice Roberts’ 22-page opinion for the unanimous Court, there were two concurring opinions: a two-page opinion by Justice Thomas, and a ten-page one by Justice Alito (joined by Justice Kagan).  Both of these concurrences were written for the purpose of adding to the arguments of Roberts’ opinion for the Court, and neither disagreed with even a single proposition advanced by the chief justice.  So Michaelson’s “split” is a misleading fiction.

6.  Michaelson writes, “The notion that the U.S. Constitution protects all religious liberty is really a creation of the last 80 years, and the result of the work of marginal religious groups, not mainstream ones.”  To this one’s reaction is mostly “huh?”  Whatever “religious liberty” consists of, it seems clear on the face of the text that the Constitution indeed protects all of it.  And it is hard to tell whether Michaelson has it in for “marginal religious groups” for “creating” all this religious freedom, or for “mainstream ones” for taking advantage of it.  Later he similarly whines that the Religious Freedom Restoration Act, “passed at least nominally to address unfairness regarding Native American peyote use,” has been used by other less exotic claimants.  Very weird.

To be continued . . .


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